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Friday, February 09, 2007

Felony murder conviction reversed

B. Joyce Yeager won reversal of a felony-murder conviction in State v. Horton, No. 93,982 (Kan. Feb. 2, 2007), a fairly high profile Johnson County felony murder conviction stemming from Liz Wilson's disappearance and death in 1974. The KSC applied its recent decision in State v. Gunbyholding that prior bad act evidence involving Mr. Horton and another girl (Joy) were not sufficiently similar to be admissible:

In this case, the State fails to demonstrate sufficient similarity between Liz' disappearance and death and Joy Creager's allegations of sexual abuse. The only similarity appears to be the girls' ages. Liz was 13 years old, and Joy was 14 years old. Joy testified that she willingly accompanied Horton to a nearby golf course for the purpose of getting high by inhaling chloroform. Joy stated that Horton poured the chloroform on a rag and handed it to her. When Joy did not like the smell, Horton encouraged her to inhale the chloroform by pushing the rag back to Joy's face. After she had inhaled the chloroform, Joy testified she passed out and awoke to find her pants off and Horton's fingers in her vagina. However, there is no evidence that Liz inhaled chloroform, no evidence that Liz was rendered unconscious by chloroform, and no evidence that Liz was sexually molested. Because there is no evidence to establish a similarity between what happened to Joy and what happened to Liz, Joy's testimony is not relevant to prove any disputed material facts.

The KSC held that the improper admission was not harmless and reversed. The KSC went on to reach an issue regarding whether the state has made a sufficient case at preliminary hearing to bind over Mr. Horton. Noting that defense counsel had filed a motion to dismiss after prelim and noting that the error at preliminary hearing involved Joy's testimony, it also considered whether the state showed probable cause at the preliminary hearing:

Although the State presented evidence that Liz died, it did not present any evidence regarding the cause of Liz' death. The doctor's testimony that chloroform can be fatal does not support an inference that Liz died due to chloroform inhalation. Likewise, Horton's possession of chloroform does not support an inference that Liz died due to chloroform inhalation because the State failed to present any evidence to indicate the amount of chloroform that was in the bottles. Without that evidence, there is no support for the inference that Horton used some of the chloroform in the bottles to kill Liz.

The State's evidence established that Horton was at the high school when Liz was last seen, and he took an extended dinner break shortly after the time that Liz was last seen. Horton also had access to a potentially lethal chemical. The circumstantial evidence that Horton was working near the place where Liz was last seen and had a potentially lethal chemical in his trunk is insufficient to convince us that a person of ordinary prudence and caution would conscientiously entertain reasonable belief that Horton killed Liz.

Likewise, we find that the State has failed to establish any evidence that Horton kidnapped Liz. At Horton's trial, the State presented evidence regarding hairs found inside the high school and Horton's car. However, the State did not present any evidence regarding the hairs at the preliminary hearing. Without any physical evidence to establish a possible link between Liz and Horton's car or the high school building, there is insufficient evidence to convince us that a person of ordinary prudence and caution would conscientiously entertain a reasonable belief that Horton kidnapped Liz.

Finally, we find no evidence to support the State's theory that Horton intended to commit indecent liberties with Liz. There is no evidence that Liz was sexually molested. Without Joy Creager's testimony, the only evidence that could be construed to infer Horton's intent is the tennis player's testimony that she presumed Horton wanted her to stand on his shoulders to shut off a water valve. However, Horton did not attempt to touch the girl or force her inside the building. We find this evidence insufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that Horton intended to sexually molest Liz.

As a result, the KSC dismissed the complaint. It is a little difficult to understand why, if the evidence was insufficient, the remedy was not acquittal? Kansas appellate courts have not traditionally reached preliminary hearing errors (on the theory that any problem is corrected by a trial with proof beyond a reasonable doubt). But, after this decision, practitioners may want to reconsider the value in filing a timely motion to dismiss after a close prelim. Kudos to Michael McCullough at the Olathe PD office for making a good record.